Justices to decide whether to reimpose a lower court’s decision on the death penalty for the Boston Marathon bomber.
By Vanessa Montalbano
The U.S. Supreme Court appeared divided Wednesday after considering whether to reinstate the death sentence for Dzhokhar Tsarnaev, one of the two brothers who carried out the Boston Marathon bombings.
A federal appeals court in Boston overturned his death sentence in 2020, citing the lack of a free and fair trial at the district level because of information withheld from the jury.
Dzhokhar Tsarnaev and his older brother Tamerlan detonated two homemade bombs at the Boston Marathon on April 15, 2013. Three people died and more than 250 people were injured.
Tamerlan died three days after the attack in a confrontation with police, which culminated with him being run over by Dzhokhar in a stolen car before the younger brother fled and was later captured by Boston police.
In 2015, Tsarnaev was found guilty on all 30 criminal charges related to the bombing in the U.S District Court covering Massachusetts, where he admitted guilt but said Tamerlan had intimidated him into committing the acts. Of those charges, he received six death sentences and 11 life sentences.
Ginger Anders, an attorney for Tsarnaev, told the justices during U.S. v. Tsarnaev that there is no debate the bombings were a “grievous and shocking act of terrorism” but that the lower court had “committed legal errors” resulting in an inappropriate penalty for Tsarnaev.
Those errors, Anders said, include the exclusion of evidence that may link Dzhokhar’s older brother to three unrelated and unsolved 2011 murders carried out as an act of jihad, or a personal crusade in devotion to Islam. She said the evidence could have been used to further demonstrate that it was Tamerlan, not Dzhokhar, who had taken the lead in the bombing and that he had “unusual sway” over her client.
She also argued the district court judge failed to adequately screen jurors, saying the community’s exposure to the bombings and the related publicity prior to the trial created a potential for bias for the jurors.
“The court’s refusal to elicit basic information essential to evaluating jurors’ claims of impartiality improperly left jurors to be the judges of their own fitness to serve,” Anders said. While potential jurors were asked how much news they saw related to the case, they were never asked about the content of the news, she said.
William Jay, co-chair of Goodwins Appellate Litigation practice, a global law firm, said in an interview it would have been counterproductive to ask people to “dredge up all that they heard at the time” because it would force them to go back in time and revisit the material, which he said is “exactly what they did not want them to do.”
“Every defendant is entitled to an impartial jury and everyone also agrees that an impartial jury doesn’t mean everyone has heard absolutely nothing at all about a crime,” Jay said. “Especially, in a case like the marathon bombing. It would have been impossible even if you moved the trial into Alaska.”
In an amicus brief Jay submitted on behalf of the National Fraternal Order of Police, he said the trial judge thoroughly screened pretrial publicity via a 100-item questionnaire answered by each potential juror.
On appeal to the Boston-based U.S. Court of Appeals for the 1st Circuit last year, the court agreed to overturn Tsarnaev’s death sentence, siding with Anders’ argument that the trial judge acted improperly with regard to jury selection and the exclusion of evidence that the defendant had been indoctrinated by his brother.
The lower court withdrew the evidence of the 2011 murders on the basis that it was unreliable and would have sidetracked the actual proceeding, as both Tamerlan and an additional partner in the crimes were dead. With no living witnesses, it would have been impossible to investigate or resolve and would have been confusing for jurors, Eric Feigan, a lawyer for the Department of Justice, told the court.
But, for all capital cases, the defense has a constitutional right to present mitigating evidence, or reasons to grant them mercy and not impose the capital sentence. In this case, Justice Sonia Sotomayor said, the withdrawal of such evidence did not permit “a defendant to put on a defense” and point a finger at his older brother more sharply.
“It is the job of a jury to decide if the mitigating evidence is strong or weak,” Sotomayor said. “It’s not at the discretion of the District court.”
If able to present the evidence at trial, Anders said it would depict the “key indoctrinating event” of how Tamerlan radicalized his younger brother and pushed him to commit the bombings.
“He carried out jihadist acts previously without Dzhokhar,” Anders said, arguing that the two brothers were unequal partners in the attacks and that Tamerlan was more likely to be in the lead. “Tamerlan was not just merely bossy,” she said. “He was violent.”
Justice Brett Kavanaugh said the idea that Tamerlan took the lead in the 2011 murders is “entirely unreliable because we don’t know,” giving weight to the lower court’s decision.
“Playing the comparison game [between the two brothers] is not the right role for the jury to take in a case like this,” Kavanaugh said.
Even if the court made a mistake in not putting the information in front of a jury, Jay said, “it was a harmless mistake.”
“The result would not change. He was not under the thumb of his brother when carrying out the bombing,” he said.
Court evidence presented by Feigan showed a video of Dzhokhar planning the offense and eventually planting the bomb, physically separate from his brother.
If the Supreme Court decides against reinstating the death penalty, the case will return to trial to impose a new penalty phase, forcing victims to retestify. Feigan said this would be “inappropriate.”
The last executions to take place in Massachusetts were in 1947, but by 1984 capital punishment was abolished completely in the state. The federal government can still seek the death penalty for an act of terrorism regardless of state law.
It is unclear whether, even if Tsarnaev’s death penalty is reinstated, if he would actually be put to death, given the Biden administration’s current opposition to the federal death penalty.
Regardless of the court’s decision, Tsarnaev will spend life in prison.
Vanessa Montalbano 